May and Blackthorn & Anor

[2018] FCWA 23

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

CITATION: MAY and BLACKTHORN & ANOR [2018] FCWA 23

CORAM: DUNCANSON J

HEARD: 12 FEBRUARY 2018

DELIVERED : 16 FEBRUARY 2018

FILE NO/S: PTW 2376 of 2015

BETWEEN: MS MAY

Applicant

AND

MR BLACKTHORN
First Respondent

AND

MS BLACKTHORN
Second Respondent

Catchwords:

CHILDREN - Where it is in the best interests of the child to live with the paternal grandmother - Where the child has been exposed to family violence in the care of the father and the mother - Where the trial proceeded on an undefended basis

Legislation:

Family Law Act 1975 (Cth) s 60CA, s 60CC

Category: Reportable

Representation:

Counsel:

Applicant: Ms M

First Respondent : No Appearance

Second Respondent : No Appearance

Independent Children's Lawyer : Ms P

Solicitors:

Applicant: Law Firm A

First Respondent : Self-Represented Litigant

Second Respondent : Self-Represented Litigant

Independent Children's Lawyer : Law Firm B

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

INTRODUCTION

1These proceedings concern the child [K] who is 10 years of age. K lives with the paternal grandmother, [Ms May]. K's father [Mr Blackthorn] is living in [New South Wales]. The whereabouts of K's mother, [Ms Blackthorn] is unknown, although she is believed to be living in Perth.

THE PROCEEDINGS

2The paternal grandmother commenced these proceedings on 7 May 2015.

3On 2 June 2015 an order was made until further order, that K live with the paternal grandmother and spend time with the mother as agreed, or failing agreement as ordered by the Court.

4The parties were ordered to attend a case assessment conference on 6 July 2015. Only the paternal grandmother attended.

5On 20 July 2015, orders were made for K to spend supervised time with both of her parents, although separately. An order was made for the appointment of an independent children's lawyer ("ICL").

6On 11 November 2015 the time within which the father and the mother were to file documents was extended and in the event either party failed to comply, the paternal grandmother have leave to proceed on an undefended basis. Orders were also made for the mother and father to undergo random drug urinalysis testing.

7On 25 January 2016, orders were made until further order, providing that the paternal grandmother have parental responsibility for K. K was to spend supervised time with the father at Anglicare. The mother was to advise the paternal grandmother if she sought supervised time with K. Various other parenting orders were made relating to the provision of information and overseas travel. A finalisation order was also made.

8The mother has not participated in the proceedings since that date.

9On 14 April 2016, the father filed a Form 1A response seeking that K live with him. At the time of filing the father was incarcerated.

10On 26 July 2016 orders were made requiring the father to advise the ICL and the paternal grandmother of the date of his release from prison and to provide copies of documents relating to criminal charges to the ICL. Orders were also made until further order, that K have telephone contact with the father each Sunday.

11[Mr P], Social Worker was appointed single expert witness on 6 October 2016. His report was filed on 13 April 2017.

12A readiness hearing took place on 12 July 2017.

13On 7 September 2017 orders were made providing for service of documents upon the father and the mother. The proceedings were transferred to the Bunbury Circuit of the Family Court of Western Australia and the parties were to attend a readiness hearing in Bunbury on 10 October 2017. The father was given an extension of time to file his documents failing which the Form 1A response would be dismissed. An extension of time was also given to the mother to file her documents by 5 October 2017, failing which the paternal grandmother had leave to proceed on an undefended basis with respect to the mother.

14On 10 October 2017 the father's Form 1A response was dismissed. The trial was listed in the Bunbury Judicial Circuit in the week commencing 12 February 2018.

15There was no appearance by the mother or the father. The ICL attended by telephone. The matter proceeded on an undefended basis.

THE EVIDENCE

16The paternal grandmother relied on her affidavits filed 10 July 2017 and 12 February 2018. She also relied on the affidavit of her husband [Mr May] filed 10 July 2017 and Mr P's report.

17The paternal grandmother gave oral evidence. I am satisfied K's best interest are her priority.

THE PARENTING ORDERS SOUGHT

18The paternal grandmother seeks orders in terms of the ICL's minute of proposed orders. They include orders that she have sole parental responsibility for K and that K live with her. She proposes that K spend time with the mother and father as agreed from time to time on certain conditions and she have telephone communication with them.

19The paternal grandmother seeks orders permitting overseas travel, orders for the provision of information and a non-denigration order.

BACKGROUND

20The paternal grandmother was born [in] 1962, she is 55 years of age. The father is her son from her first marriage. She is married to Mr May.

21The father was born [in] 1980, he is 37 years of age. He has experienced difficulties throughout his adult life including drugs and alcohol use. The father has a criminal history of drug and violence offences.

22The mother was born [in] 1987, she is 30 years of age. She too used drugs. She has two other young children, one of whom is in her mother's care. Her relationship with her partner has recently broken-down.

23The father and mother commenced a relationship in 2005, and married in June 2006.

24K was born [in] 2007.

25In May 2010 police were called to a violent altercation between the father and the mother at their home in the presence of K. The father assaulted the mother. The police contacted the paternal grandmother asking her to collect K. The father assaulted the mother on several other occasions giving rise to police intervention.

26The father and the mother separated in April 2014 although they resumed their relationship from time to time after that.

27The father commenced a relationship in May 2014 with [Ms B].

28K lived with the mother when the parties first separated, however the mother had difficulty coping and agreed that K should live with the father and Ms B. The paternal grandmother visited her regularly.

29In February 2015 Ms B obtained a violence restraining order ("VRO") against the father. K was exposed to family violence in their home.

30In early February 2015 the police contacted the paternal grandmother and asked her to collect K. K stayed with the paternal grandmother until the following morning when the mother collected K. On about 20 February 2015 a violent incident took place between the father and the mother, and the mother took K to a women's refuge.

31The father and mother finally separated in March 2015.

32On 28 March 2015 the father removed K from the mother's care. The paternal grandmother contacted the Department for Child Protection and Family Support ("DCPFS") (as it then was) as she was concerned for K's welfare. The paternal grandmother obtained a VRO against the father.

33On 2 April 2015 the father was arrested on criminal charges. DCPFS were concerned about K's physical and emotional wellbeing and placed K in the paternal grandmother's care with the consent of the mother.

34The father is living in New South Wales.

35The mother has two other daughters born in 2016 and 2017. Her address is unknown.

THE LAW

36These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.

37The objects are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

38In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child’s best interests. I must consider the primary and additional considerations.

39Section 60CC(2) sets out the primary considerations which are the benefit to the child of having a meaningful relationship with both the child's parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

40Section 60CC(2A) provides that in applying the above considerations, the Court is to give greater weight to the need to protect the child from harm.

THE PRIMARY CONSIDERATIONS

the benefit to the child of having a meaningful relationship with both of the child’s parents

41K has a meaningful relationship with the paternal grandmother and it is to her benefit that it continues. K has not seen the father since January 2017. He has written letters and telephoned K, however the letters were inappropriate and the telephone calls ceased on 25 June 2017. The mother has not seen her for a considerable period of time, but spoke to her on the telephone in January 2018. The benefit to K of having a meaningful relationship with the father and the mother must be balanced against the need to protect her from harm.

the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

42There is not a need to protect K from harm in the care of the paternal grandmother. There is however, a need to protect K from harm in the care of the father, by reason of drug and alcohol use, and his violent and aggressive behaviour towards others. K was exposed to this behaviour when the mother and father were together. The mother has two younger children and her circumstances are unstable. To ensure K's safety, the paternal grandmother proposes that her time with the father and mother be subject to such conditions as agreed between them.

43Mr P reported that K does not appear to be at risk in the care of the paternal grandmother. He was not confident that the father was able to maintain stability of lifestyle, remain mentally stable and remain free of drug use. Mr P was not able to assess the mother, but the evidence suggested to him that she could not be relied on to be a safe and secure person for K to spend unsupervised time with.

ADDITIONAL CONSIDERATIONS

any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

44K is 10 years of age. Mr P reported that she wishes to live with the paternal grandmother and Mr May and to have supervised visits with her parents. As to influence, Mr P reported it is likely that K's expressed views are a combination of her own views and those of the paternal grandmother, but her own views are a significant factor.

the nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child)

45Mr P reported K has a strong and positive relationship with the paternal grandmother and Mr May. Within limits her relationship with the father and the mother is also described as positive, although she has not seen either of them for many months. K has friends at school and within the [church] congregation.

the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child;

the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

46The paternal grandmother has made the decisions about major long-term issues in relation to K since April 2015. The father and the mother have not taken the opportunity to spend time with K for many months and K rarely has telephone communication with them.

47The paternal grandmother and Mr May maintain K. The father and mother do not provide financial support for K.

the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

48K is accustomed to living with the paternal grandmother, who has been her primary carer since April 2015.

49The paternal grandmother proposes that K spend time with and communicate with the mother and father subject to conditions and as agreed between the parties.

50K finds living with the paternal grandmother and Mr May to be safe, secure and peaceful. Mr P reported that if there were to be a forced change upon her to suddenly move from their care, she would suffer a significant negative impact and most likely high distress. Any such change in her circumstances is likely to have a detrimental effect upon her.

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

51There is practical difficulty and expense associated with K spending time with, or communicating with the father and the mother. This difficulty arises by reason of distance and the cost of flights as the father now lives in New South Wales. The mother's address is unknown. Supervision is required as this is something K wants and it is also necessary to protect her from harm.

the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs

52The paternal grandmother is employed as [a nurse]. She works shifts and Mr May assists with K's care. The paternal grandmother provides well for K on all levels.

53Mr P reported K is happy, safe and secure living with the paternal grandmother and Mr M. They have demonstrated they can provide safety, security and stability for K when her parents have not been able to do so in recent years.

54The father and mother are not capable of providing for K’s needs.

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

55The paternal grandmother and her husband are religious. K attends church, not only to practice her faith but also to socialise.

56The father expressed concern to Mr P that the paternal grandmother and Mr May are members of the [local church] group and have indoctrinated K to be aligned with the religious beliefs. Mr P reported that notwithstanding the father's concerns about the religion, K attends a State Government school and has the opportunity to interact with adults out of the local church, and could raise any issues of concern at school. He further reported there was no mention in the school documents of their having been any problems relating to K living in a family that follows [a] religious belief system.

57[Paragraph suppressed].

58The paternal grandmother said at times the mother and father have both had involvement with the local church. She said at Christmas time the family usually go camping, but if K was spending time with a parent and wanted to celebrate Christmas, they would leave it up to her as to whether to participate or not.

if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

59This consideration is not relevant.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

60The paternal grandmother has demonstrated a responsible attitude to K and to the responsibilities of parenthood. She has shielded K from the behaviour of the father and the mother.

61The father and the mother have not demonstrated an appropriate attitude to the responsibilities of parenthood as discussed above.

any family violence involving the child or a member of the child’s family

62There has been family violence between the father and the mother, and K was exposed to this.

if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter

63The paternal grandmother obtained a VRO against the father in early 2015 which has since expired.

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

64It would be desirable to finalise these proceedings and give K certainty in her living arrangements going forward.

any other fact or circumstance that the court thinks is relevant

65Mr P reported that the paternal grandmother does not appear to be in need of counselling. K does not appear to be in need of therapeutic support.

PARENTAL RESPONSIBILITY

66I intend to make an order that the paternal grandmother have sole parental responsibility for K. She is well placed to make long-term decisions for her. There is no prospect of her consulting with the father and mother in making joint decisions about long-term issues. In recent years they have not participated in K's upbringing.

67It is in the best interests of K to live with the paternal grandmother. She has been the primary carer for K since she was placed in her care by DCPFS. K is happy and safe in her care.

68If and when K wishes to spend some time with the father, or the mother, that should be encouraged and facilitated provided it can be done safely without exposing K to harm. I accept the paternal grandmother’s evidence that she will do that. Having regard to K's age, her views are important. K wants any time she spends with her parents to be supervised.

69I am satisfied the orders sought by the paternal grandmother being those proposed by the ICL are orders which are in the best interests of K.

THE ORDERS

70I make the following orders:

1The Applicant, [MS MAY] have sole parental responsibility for the child [K] born [in] 2007.

2The child live with the Applicant.

3The child spend time with the First Respondent, [MR BLACKTHORN] and the Second Respondent, [MS BLACKTHORN] at such times and subject to such conditions as agreed between the parties from time to time.

4The First Respondent and the Second Respondent be at liberty to telephone the child at such times as the parties agree from time to time and the Applicant permit the child to telephone the First Respondent and the Second Respondent at such times as the child wishes.

5The Applicant be permitted to obtain and renew as required an Australian Passport for the child without the consent of either the First Respondent or the Second Respondent.

6Subject to order 7 hereof, the Applicant be permitted to take the child outside the Commonwealth of Australia for the purpose of holidays.

7In the event that the Applicant intends to take the child outside the Commonwealth of Australia, or outside the State of Western Australia for the purpose of holidays, she shall provide to both the First Respondent and the Second Respondent no less than 28 days' notice, including copies of all return airline tickets, itineraries and contact details for the duration of the holiday.

8The Applicant keep the First Respondent and the Second Respondent advised at all times of the child's residential address and telephone contact details.

9The First Respondent and the Second Respondent each keep the Applicant advised at all times of their addresses, email addresses and telephone numbers and the requirement of the Applicant to provide information to the First Respondent and the Second Respondent shall be subject to them each providing up to date contact details.

10All communications between the First Respondent and/or the Second Respondent and the Applicant for the purposes of compliance with these orders shall be in writing by mail, email or text message, save and except in the case of emergency, when the parties shall be permitted to communicate by telephone.

11The Applicant shall keep the First Respondent and the Second Respondent advised at all times of significant issues pertaining to the child's health, education and welfare, including but not limited to providing copies of all school reports and medical reports.

12Each of the parties be restrained by injunction from:

(a) denigrating the other parties or their partners or family members; and

(b)discussing these proceedings or the allegations which gave rise to the proceedings

in the presence or hearing of the child.

13The Independent Children’s Lawyer be discharged.

14The proceedings otherwise be dismissed.

I certify that the preceding [70] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate